Molelle and Others v R (CRI/T/95/2002 )

Case No: 
CRI/T/95/2002
Media Neutral Citation: 
[2004] LSHC 90
Judgment Date: 
27 July, 2004

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CRI/T/95/2002

IN THE HIGH COURT OF LESOTHO


In the matter between:-

NO.4903 SERGEANT LENKOANE MOLELLE 1ST APPLICANT

NO.4883 CORPORAL LIJANE KALOKO 2nd APPLICANT

NO.5717 CORPORAL TANKISO MAJORO 3rd APPLICANT

vs

REX RESPONDENT


JUDGMENT

(on Pardon's declarator)


CORAM: HON.MR JUSTICE S.N. PEETE

DATE: 27th JULY 2004


Headnote


Pardons Act - Declarator of a right to be pardoned under section 4 of

Pardons Act No.7 of 1996. When the right to be pleaded in the trial proceedings. Effect of conviction- Import of Section 7 of the Act -Distinction between Royal and Statutory pardons. Purposive interpretation of section 4 of the Act.


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A soldier who has committed an offence (other than murder or culpable homicide) during the period designated under section 4 of the Pardons Act No. 7 of 1996 has a right to plead this statutory pardon under section 162 or at any time before conviction. He must however satisfy the court of the fulfillment of the conditions set down under section 4 of the Pardons Act


Without extrinsic evidence to the contrary, a purposive interpretation of section 4 of the Act precludes soldiers from pursuing political objectives besides the execution or purported execution of their duties.


After conviction, section 4 of the Act has no application and Royal Pardon may be sought under section 101 of the Constitution read with sections 331 -333 of the Criminal Procedure and Evidence Act No. 9 of 1981.


1. Introduction

In this case, it is common cause that the three applicants have been convicted by this court under counts one to four - kidnapping.


On the 28th June 2004 when the court sat to hear submissions from counsel (a) on extenuation re: Count 5 and (b) on mitigation on sentence on all counts, the defence counsel Mr Maieane urgently filed before this court a formal application whose notice of motion prayed:


"1. That applicants herein be declared pardoned on kidnapping charges in terms of Pardons Act No. 7 of 1996.

2. Further and/or alternative relief "


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Let it be noted that the application refers to "kidnapping charges" and not to "convictions."


2. This was accompanied by the founding affidavit of the first applicant who states under oath that-


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"I have been legally advised and believe same to be true and correct by my legal team after the Honourable Court has so found me guilty of kidnapping together with 2" and 3rd applicants I together with them can humbly approach this Honourable Court and move an application for pardon in terms Pardon Act No.7 of 1996 because these our acts have been pardoned by the legislature within the prescribed period it being a period of between the 27th day of March 1993 to the 31sti day of December 1995. And up to now we have not waived our said right to ask for pardon.


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Kidnapping of politicians (Honourable Ministers) per se is a political act".


3. The two other applicants have in turn filed their supporting affidavits.


4. Mr Suhr for the respondent elected to oppose this application without filing any answering affidavits but raised certain points of law tabled thus-


"(a) this Court, having convicted the applicants of kidnapping is functus officio and cannot overrule its own verdict;


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(b) on a proper construction of the Constitution of Lesotho, the Pardons Act 7 of 1996 and the Criminal Procedure and Evidence Act 7 of 1981, the applicants should have claimed the benefit of the Pardons Act not later than when they pleaded not guilty to the charges of kidnapping laid against them in the indictment;


(c) in any event, and even if it had been made at the correct time, the allegation by the applicants that "[k]idnapping of politicians (Honourable Ministers) per se is a political act" is insufficient to invoke the Pardons Act as it is incumbent on the applicants to show that the crimes of kidnapping were committed pursuant to a political objective. There is no allegation, let alone evidence, that the applicants pursued any political objective. "


Counsel for both sides have submitted heads of argument and duly addressed the court at length on the important points of law raised.


5. The Pardons Act No.7 of 1996 was passed by the Parliament of Lesotho on the 6th September 1996. It is an undeniable fact and truth that at the time of the passing of this Act, Lesotho had been experiencing upheavals in its disciplined forces especially in the Lesotho Defence Force (LDF), since January 1994, some sporadic skirmishes were being fought from the mountain tops around the City of Maseru. There existed in the LDF an atmosphere of indiscipline throughout the ranks.


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6. The Pardons Act states-


"An Act to make provision for the granting of a pardon to persons who are in unlawful possession of firearms and ammunition and to certain persons who are liable to criminal prosecution for certain offences and for disciplinary proceedings and for matters connected therewith:


Preamble


WHEREAS section 12 (6) of the Constitution provides that no person shall be tried for a criminal offence if he shows that he has been pardoned for that offence:


AND WHEREAS it is expedient for the purposes of reconciliation and in the national interest to grant a pardon to persons


  1. who may be in unlawful possession of firearms and ammunition;


  1. who may be liable for criminal prosecution for or on account of or in respect of any act, matter or thing done or purported to be done during the period 27th March 1993 to 31st December, 1995 by such person in the execution or purported execution of his duty or in the pursuit of any political objective; and


  1. who may be liable for disciplinary proceedings for or on account of or in respect of any act, matter or thing done during such period." (My underline)


7. Relevant to this application are section 4 and section 7 and they seriatim state as follows:-


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"4. There shall be granted a pardon to a member of-


  1. the Lesotho Defence Force;

  2. the Police Force;

  3. the National Security Service;

  4. the Prisons Service;

  5. the former Lesotho Liberation Army; and

  6. any other armed group that pursued a political objective.


who may be liable for criminal prosecution for or on account of or in respect of any act, matter or thing done or purported to be done during the period 27th March 1993 to 31st December, 1995, by such member in the execution or purported execution of his duty, or in pursuit of any political objective, provided that no such pardon shall be granted to a member who has committed the offence of murder or culpable homicide". (My underline)


Section 7 reads:-


"Pending criminal proceedings in court


7. Where any criminal proceedings are pending in a court against any person referred to in section 4, such proceedings shall continue and in the event of conviction the provisions of section 101 of the Constitution relating to the prerogative of mercy may apply. " (My underline)


8. Section 4 of the Act therefore provides for a statutory pardon granted by the Parliament of Lesotho to persons in the disciplined forces who satisfy conditions therein stated. The right envisaged under Section 4 is the right not to be prosecuted criminally for any offence committed during the designated period provided the recipient of the right falls under any of the categories (a), (b), (c), (d), (e) and (f) and that the offence was committed in execution of duty or purported execution of duty or for furtherance of a political objective.


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9. In my view, if the accused did not raise the plea of pardon under the Act at the pleading stage, it may not be raised during trial which must continue to finality after which the provisions of section 7 of the Act shall apply.


10. In other words, statutory pardon being an executive/legislative act or prerogative under section 4 is exercisable before plea; and once it is thus raised, the court must inquire whether the accused claiming pardon satisfy the requirements as stated under section 4 of the Act.


11. In the present proceedings, through their own choice, the accused elected not to raise the plea of pardon at the pleading stage and contended themselves to the version that whatever they did, they did in execution of their duties e.g. standby duties. No foundation was laid to pigeonhole the accused as recepients of the Statutory pardon.


12. Under our law a criminal trial begins when the accused pleads and ends when he is acquitted or sentenced after his conviction. In my view, it would be an irregular monstrosity to "arrest" - so to speak -the trial after the accused has been found guilty and mount an inquiry whether the accused are entitled to pardon under Section 4 of the Pardons Act. The court is in fact being asked to grant a declarator to the effect that "that accused have been pardoned under section 4 of the Pardons Act". The simple effect of this would be to declare that the whole criminal proceedings be nullified or set aside because the accused (present applicants) were not liable to have been prosecuted


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in the first place. I know of no phenomenon verdict "guilty but pardoned." The nearest I have been able to notice is section 290 of the Criminal Procedure and Evidence Act No.9 of 1981. It reads:-


"290 (1) A person convicted of an offence before the High Court, whether on his plea of guilty or otherwise, may, at any time before sentence, move the High Court that judgment be arrested on the ground that the indictment does not disclose any offence. "


This does not apply to the circumstances of the application before us.


13. The effect of pardon being retroactively to absolve the recipient from all consequences of his offence and any criminal proceedings that can result therefrom, in old view, the statutory pardon necessarily had to be pleaded at the first opportunity; for if the accused obtained the pardon before arraignment and instead of pleading it in bar, pleaded general issue, he was deemed to have waived the benefit of it and could not afterwards avail himself of it before judgment, (2 Hawke, C.37, S.59); see also State v Nellmapius- 2 S.A.R 121. Swift and Harcourt - South African Law of Criminal Procedure (1957ed) page 245 hold the persuasive view that under the modern constitutional theory with its insistence upon the importance of the division between functions of the Executive and the Judiciary, pardon cannot be pleaded during the course of a criminal trial when the Court (judiciary) is seized with the merits of guilt and punishment. Section 7 indeed stipulates that the trial shall continue - I assume - to a finality.


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14. Procedurally and jurisprudentially a pardon is a plea to a charge - it must in ordinary circumstances be raised between an arrest and arraignment because its consequence, if successful, is to quash the indictment. If pardon is granted during the proceedings, such proceedings must end.


Where pardon was granted before the proceedings started, the plea of pardon must be raised at the pleading stage and not at the "eleventh hour" without good reason being advanced, otherwise criminal proceedings become but a mockery and a sham.


This notwithstanding, I have however decided, for the sake of justice, to hear the merits of the application and to determine whether despite their having been convicted by this court, the applicants have satisfied the court of the fulfilment of the conditions under section 4 (supra) of the Pardons Act and that the statutory pardon is operative in these proceedings even after their having been convicted but not yet sentenced by this court.


15. Mr Nteso, in his eloquent address, sought to bring - and correctly so - a clear distinction between "statutory pardon" and "Royal pardon", the latter as envisaged under section 162 (2)(d) and section 333 of the Criminal Procedure and Evidence Act No.9 of 1981 and the former under the Pardons Act.


Royal Pardon can be granted by the King under section 101of the Constitution of Lesotho.


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16. He has cited Lansdown and Campbell - South African Criminal Law and Procedure Vol. V (1982) where the learned authors state as follows at page 446-


"where, however, pardon has been granted by statute, no omission to plead it can deprive the recipients of its benefits.


A pardon may be free or subject to certain conditions. It is necessary therefore for the accused to prove not only the fact of the pardon but its character and in the event of its having been conditional, he must prove that the conditions have been fulfilled "


17. In determining whether the "section 4 pardon" is available to present applicants, it is necessary to look at the preamble provisions of the Act because this will assist the court in assessing the intention and purpose of the Parliament of Lesotho in passing this Act in 1996. The constitutionality of the Pardons Act is however not in issue and I will assume its constitutionality (section 2 of the Constitution).


18. It is quite clear that as already observed earlier in the main judgment, there existed a climate of indiscipline in the disciplined forces of Lesotho, especially the Lesotho Defence Force; certain offences had been committed during the sporadic skirmishes between the warring factions in the Army. It was the honourable intention of the then Government of Lesotho to bring about peace and tranquility and after whatever negotiations and mediations that took place, it was resolved to enact the Pardons Act No.7 of 1996 which became law under the


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Lesotho Government Gazette Extraordinary No.81 Vol.XLI dated 6th September 1996. This was a bold step of political gallantry at the time when the public security of Lesotho was being imperiled.


19. It is not in dispute that the three applicants were members of the Lesotho Defence Force at the material time - i.e. April 1994 and that this fell within the designated period under section 4 of the Pardons Act; besides murder and culpable homicide, kidnapping is one of the residual common law offences and need not have been specified under the Act (R v Coney and Obrian (1864), 3 Mod. Rep. 37.


20. In this application, the inquiry is whether the present applicants have a "present right" to pardon under the Pardons Act which they can ask this court to make a declarator in its regard (section 2 (1) (c) of the High Court Act No.5 of 1978; see also Lesao Lehohla v National Executive Committee of the Lesotho Congress for Democracy -1997-98 LLR 104.


21. The crucial issue is whether the applicants, being members of the Lesotho Defence Force and having been convicted of the crime of kidnapping committed during the designated period are entitled to statutory pardon under section 4 of the Pardons Act on the ground that they did so "in pursuit of apolitical objective."


22. Let it be noted that in his affidavit, the first applicant is only content to state shortly-


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"kidnapping of politicians (i.e. Honourable Ministers) per se is a political act. "


He does not issuably allege that the kidnapping was perpetrated "in pursuit of a political objective. "


23. The character of the kidnappings cannot be characterized simply as being political and done in pursuit of a political objective merely because Ministers of Government had been kidnapped, without also assessing the circumstances that precipitated and surrounded the kidnappings. The affidavit is deficient in this regard; during argument, the court even posed a hypothetical question whether kidnapping of a bishop or holy sisters per se is religious. What if judges had been kidnapped?


In passing, one can also state that if the applicants were members of the Lesotho Liberation Army and had committed the kidnapping in pursuit of a political objective, their application could perhaps be viewed more favourably.


24. In my view, in this application proceedings the court is duty-bound to re-assess the details and trend of the evidence led at the trial. No allegation or insinuation of political motive was pursued by counsel or accused themselves when giving evidence. The main motive which could be inferred from the utterances like "these ministers who cause the split in the army must be arrested" and from the barrage of questions in the Standby Hall about the salaries in the army and from


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questions about the possible intervention of the South African or Zimbabwean Armies to bring order and discipline in the Lesotho Defence Force, is that these were military - not political -matters. The accused could have as well indeed kidnapped only their commanders to achieve their purpose; that Ministers were kidnapped does not render their act per se politically motivated. Their intention or pursuit was to coerce the erstwhile government to relent and increase their salaries and to desist from inviting foreign forces into Lesotho. For example, if trade unionists toyi-toyi for wage increases in front of the Employment Minister's gate, their conduct is not per se political or politically motivated without much ado.


25. The founding affidavit of the notice of motion does not - whether through oversight or by design - allege that the kidnapping was done "in pursuit of a political objective" Then, if it so alleged, the next question would be whether the Pardons Act envisaged members of the disciplined forces of Lesotho entertaining political objectives during the designated period? When the first and second applicants each gave evidence in his own behalf, they each denied involvement in the operations of that day and contended that at most they attended the Matala scene as part of their standby duties. Now that they have been found guilty of kidnapping (a) first applicant under the doctrine of common purpose (b) second applicant as having been in the group of soldiers who actually kidnapped Ministers Moleleki and Maope, the applicants now contend that this kidnapping must be labeled political without candidly stating why and for what objective the kidnapping


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was committed. The court will not impute motive without cogent reasons.


26. The applicants have decisively elected to pin their colours to the mast of the phrase "in pursuit of a political objective". Being soldiers, this seemed to be at cross purpose to section 4 of the Pardons Act.


27. I observed to counsel during argument, and I still hold the view, that section 4 was most inelegantly drafted and phrased and this has led to inevitable ambiguity and confusion. I hold the view that whereas the members of LDF, Lesotho Mounted Police Services, NSS, Prison Services listed under (a) to (d) are disciplined forces under the Constitution and law and could commit acts (offences) envisaged under the Act only in the execution or purported execution of their duties and not in pursuit of political objectives, Lesotho Liberation Army and other armed group as in (e) and (f) would be the proper recipients of pardon if it was shown that the offences were committed in pursuit of a political objective. Elegant drafting could have made a proper distinction which matches with commonsense and logic. How can soldiers be in pursuit of a political objective? It makes no sense. The court must always adopt a meaningful and purposive approach in order to give effect to the true intention of Parliament — Lepoqo Seoehla Molapo v Director of Public Prosecutions - 1997 (8) BCLR1154.


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28. I am not convinced by the concession from the Bar made by Mr Suhr that section 4 can meaningfully be interpreted in a way which contemplates soldiers pursuing political objectives. If that were so, it is not apparent from their affidavits nor can it be gleaned from the general tenor of the evidence led in this long trial.


29. Intention of the Legislature

"A preamble is a recitation, usually couched in polished and eloquent phraseology, of the circumstances and reasons which have induced the legislature to enact the statute" — Devendish - Interpretation of Statutes (1996) page. 102.


30. In short, a preamble reveals the mischief intended to be addressed and the preamble may be a useful aid to construction when there is ambiguity or equivocality. The court is also free even to consider the surrounding circumstances prior to and during the passing of the Act in order to interpret an obscure or ambiguous provision - Devendish (supra) page 130. See Consolidated Diamond Mines v Administrator SWA - 1988 (4) SA 572 at 657 (F-G); University of Cape Town v Cape Bar Council 1986 (4) 903 (A) at 914 {contextual approach as opposed to literal approach).


31. In this inquiry, the task of the court is to ascertain the intention of Parliament and should avoid an approach which gives a loose or literal interpretation to section 4 of the Pardons Act and which can bring about an absurdity not intended i.e. disciplined forces pursuing political objectives! Disciplined forces execute their duties, armed


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political groups pursue political objectives and not vice versa. Section 4 must be read "in the light of the subject matter with which it is concerned and it is only when that is done that one can arrive at the true intention of the Legislature" (University of Cape Town case (supra) at p.914 (D-E) per Rabie C.J.


32. The existence and activities of Lesotho Liberation Army (LLA) in Lesotho of 1994 were a common knowledge which this court can take judicial cognizance of including its declared political objectives prior to the 1993 elections. LLA had no "duty" or "purported duty" to boast about in pursuit of their politically motivated operations.


33. I therefore conclude that the only fair and purposive interpretation which one can give to section 4 is that rationally interpreted only the disciplined forces listed (a) to (d) could commit acts or offences in execution of their duty or purported execution of such duty and that the other leg of the condition "in pursuit of their political objective" could be claimed by LLA or other armed grouping pursuing political objective.


34. I hold therefore that as it stands the application for a declarator has to be dismissed. This applies to the first and second applicant.

Although he has aligned himself with founding affidavit of the first applicant, the third applicant seemed throughout the trial to have been an obedient soldier who drove without question the military van to whatever place it was commandeered to. His case is that of complete


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obedience to superior orders. He however elected not to give evidence the court has to rely upon the founding affidavit filed in the application. It is not proper to consider the issue of obedience to superior orders whilst on execution of duty mainly because the third applicant has decisively thrown his lot with other applicants - namely, that the kidnapping was committed for a political objective. His application similarly fails.


35. Section 7 of the Pardons Act {supra) also provides that where (at the promulgation of the Act) criminal proceedings which are already pending in a court against any person referred to in section 4, "such proceedings shall continue" (to finality) and in event of conviction the provisions of section 101 of the Constitution relating to the prerogative of mercy shall apply.


36. The import of this section is to obviate "arrest" of continuing criminal proceedings but to allow them to continue until conclusion. Whilst statutory pardon can be raised at any time, its raising should not dislocate administration of justice; a court properly seized of a criminal trial must continue its hearing until the conclusion thereof unless the prosecution withdraws the charge. Section 7 of the Pardons Act respects this ideal.


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37. In this case, the issue of pardon was not raised at the pleading stage whereas the applicants and their counsel knew that the Pardons Act was extant. It seems to me that once the "conviction" stage has been reached and the persons referred to under section 4 have not issuably raised statutory pardon, only Royal Pardon may be sought under section 101 of the Constitution and section 333 of the Criminal Procedure and Evidence Act 1981..


38. In my view the word "may" under section 7 does not confer any discretion upon this court to grant "Royal Pardon" but leaves a choice to the accused/applicant to seek Royal Pardon upon which provisions of section 333 of the Criminal Procedure and Evidence Act No.9 of 1981 shall mutatis mutandis apply.


39. The conclusion I reach therefore is that this application is hereby refused and this trial shall continue to conclusion but without prejudice to the right of the accused to seek pardon under the Constitution and relevant provisions of Criminal Procedure and Evidence Act No.9 of 1981 at the appropriate stage and time.


S.N. PEETE

JUDGE

For Applicants : Mr Maieane

Mr Nteso

For Respondent : Mr Suhr